How the pandemic is impacting youth sports risk management
The pandemic has intensified organizations' responsibility to reduce COVID-19 transmission and create safe environments for children to enjoy youth sports.
The promise of a COVID-19 vaccine has now become a reality for adults; however, vaccines have not yet been approved for use in children, and it remains unknown when a pediatric vaccine will be available. Since it is more likely than not that children will largely remain unvaccinated by the start of the spring sports season, youth sports will remain in a precarious position for the foreseeable future.
For youth sports organizations and communities planning to move forward in some fashion with youth sports in the upcoming seasons, there are certain risk management and litigation considerations to take into account.
As of today, there is no way to eliminate the risk of exposure to COVID-19. The more activities that one engages in, the greater the risk of exposure. Generally, when evaluating the risk of COVID-19 spread in a specific youth sport, one should consider numerous factors, including, but not limited to, the following:
The community levels of COVID-19; the physical closeness of players; the level of intensity of the activity; where the activity will occur; length of time that players are close to each other or staff; the amount of necessary touching of shared equipment and gear; ability to engage in physical distancing while not actively engaged in play; the ages of the players; players at higher risk of developing severe illness; the size of the team; nonessential visitors, spectators, and volunteers; travel outside of the local community; and behavior of athletes off the field.
Risk management strategies for youth sports organizations
The Centers for Disease Control and Prevention (CDC) has provided helpful guidance and considerations to supplement state and local health and safety regulations for communities in the United States by offering a relatively simplistic concept of the five risk levels in youth sports, all of which depend upon the risk of spread and available social distancing measures. The lowest level of risk is skill-building drills at home, which is considered the safest option because once a gathering of children develops, there is a higher risk of transmission.
The second level of risk is team practice, followed by the third level of risk of inter-team competition, and the fourth level of risk of competition with teams from your area. The fifth level of risk is full competition from different areas, and this is deemed the highest level of risk because it involves competitions with teams outside of the local community.
The CDC guidance also shares strategies that youth sports organizations and communities should implement to foster behaviors that reduce the risk of COVID-19 spread while playing team sports. The CDC recommendations emphasize staying home when appropriate – both when a child or family member is positive or exposed to COVID-19, but also as an alternative to engaging in full team activities to decrease the risk of spread.
Risk can also be reduced by wearing a mask that covers the nose and mouth at all times and maintaining at least six feet of separation between players. The social distancing requirement can be best kept by choosing an outdoor setting, selecting a larger playing area, and having smaller team sizes.
Travel, especially outside of the local community, should be limited. Athletes should be encouraged to use their own equipment, and extra precautions should be taken with shared equipment, including cleaning and disinfecting between use. Coaches and athletes should promote hand hygiene and respiratory etiquette, and they should be equipped with adequate supplies to support the same.
The CDC also suggests that verbal announcements are made and signs posted in highly visible locations that promote protective measures and describe how to stop the spread of germs. The CDC guidelines place responsibility on coaches to educate and keep track of players, maintain a safe and sanitary environment, and implement the suggestions promulgated by the CDC.
Parents’ roles in mitigating COVID-19 infection risks
Youth sports organizations and communities at large should implement the CDC guidelines in an effort to mitigate the risk of spread attributable to team activities and decrease the possibility of claims related to COVID-19 exposure. However, they should also educate parents and participants with respect to the risk of exposure and the efforts that have been made to mitigate, but not necessarily eliminate, the same.
To the extent that it occurs, litigation in the youth sports arena will likely stem from COVID-19 transmission during practices and games, and the resulting illness of an athlete or family member. The grounds for these claims and possible lawsuits could include failure to implement appropriate safety measures, failure to warn of the risk of exposure, and/or failure to follow applicable federal, state, and CDC guidelines. These cases will be very difficult to prove, but they will, nonetheless, be a significant stressor.
Avoiding potential liability
Youth sports organizations should consider implementing additional risk management techniques and protocols to educate participants and parents and to mitigate the spread of COVID-19. These risk management considerations include, but are not limited to, educating parents, guardians, and athletes about COVID-19 and the youth sports organization’s expectations; keeping track of athletes’ activities outside of practice and games; social distancing; wearing masks; smaller team size; conducting activities outdoors, and promoting a sanitary environment.
Youth sports organizations may also look into utilizing COVID-19 specific exculpatory agreements and should consider asking athletes and/or families to execute an exculpatory agreement to protect against future claims of exposure to COVID-19, and if so, whether to include such language in an existing exculpatory agreement or in a separate document.
Exculpatory agreements are employed by certain businesses and organizations, often those providing recreational services, to minimize or eliminate liability for personal injury occurring while an individual is engaged in an activity that includes certain inherent risks or dangers. The law relating to exculpatory agreements, and the enforceability of the same, varies greatly from state-to-state.
Certain jurisdictions hold exculpatory agreements void as a matter of public policy, while others require exculpatory agreements to contain specific language or relate to a specific inherently risky or dangerous activity (e.g., skiing, horseback riding, or sky-diving). As such, prior to implementing any exculpatory agreements, it is important to review the relevant regulations, statutes, and case law in a particular jurisdiction.
The COVID-19 pandemic has placed a heightened responsibility on youth sports organizations, coaches, families, and athletes to reduce transmission and to foster a safe environment for children to participate in youth sports. Provided that states seek to continue youth athletics in the spring of 2021, these measures must continue in order to mitigate and reduce the risk of spread amongst children.
Shrina F. Faldu and Olivia C. Tawa are associates with the law firm of Gfeller Laurie LLP. Their legal practices focus largely on the representation of sports and recreational operators, providing both risk management and litigation services. They may be reached at sfaldu@gllawgroup.com and otawa@gllawgroup.com.
Related: